Managing Conflict in the Workplace Part 3: Legal Services

7 September 2018

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Legal services for managing workplace conflict

Managing conflict in the workplace parts 1 and 2 concentrated on good employment relation practices. This included management training, communications and consultation so as to prevent many discipline and grievance problems arising. However, small disagreements in the workplace can easily turn into bigger problems if not dealt with correctly. Even where every effort has been made to prevent it from escalating to this level. Unfortunately, some may become employment tribunal claims. And others may expand into industrial disputes between groups of employees and their employer.

As highlighted in parts 1 and 2, dealing with issues early and informally provides the best chance of resolution. In some cases where, unfortunately ‘a quick word’, doesn’t do the trick, formal policies and procedures will be needed. This may be utilising the
methods described in our “cure” blog to include mediation. However, when disputes escalate, they can soon become complex and expensive to deal with on a number of levels. This is why it is important to consult a specialist legal consultant who can advise you as to the process which lies ahead.

If relations have deteriorated to such an extent that you feel you need to instigate your disciplinary procedures or you fear matters may get to this stage, then it is so important that your practices and procedures are:

correct

compliant with current laws and regulations

adhere to failing where you may find yourself at the wrong end of a ruling and with significant costs consequences

Initial negotiations with your employer/employee, often through the parties’ solicitors, with a view to a settlement agreement may assist in negotiating an outcome which works for all parties.

What is a settlement agreement?

Settlement agreements are legally binding contracts which can be used to end an employment relationship on agreed terms. They can also be used to resolve an ongoing workplace dispute, for example, a dispute over holiday pay. These agreements can be proposed by either an employer or an employee, although it will normally be the employer.

Once a valid settlement agreement has been signed, the employee will be unable to make an employment tribunal claim about any type of claim which is listed on the agreement. Where the employer and employee are unable to reach an agreement, the settlement discussions cannot usually be referred to as evidence in any subsequent unfair dismissal claim. Where the settlement discussions are held to resolve an existing dispute between the parties they cannot be used as evidence in any type of claim. The whole process is confidential.

Reaching a settlement agreement

For the settlement agreement to be legally binding the following conditions must be met.

The agreement must be in writing

The agreement must relate to a particular complaint or proceedings

The employee must have received advice from a relevant independent adviser, such as a lawyer or a certified and authorised member of a trade union

The independent adviser must have a current contract of insurance or professional indemnity covering the risk of a claim by the employee in respect of loss arising from the advice

The agreement must identify the adviser

The agreement must state that the applicable statutory conditions regulating the settlement agreement have been met

Employees should be given a reasonable amount of time to consider the proposed conditions of the agreement;

Settlement agreements are voluntary and parties do not have to agree to them or enter into a discussion about them. There can be a process of negotiation during which both sides make proposals and counterproposals until an agreement is reached or both parties decide no agreement can be reached. Legal advice is needed before signing a settlement agreement for it to be legally binding. However, it is a good idea to take expert advice from an employment law solicitor as soon as possible, if you want help negotiating the terms of your settlement agreement since this can be invaluable in getting to a deal you’re happy to accept. They’ll also make sure that the deal is suitably drafted to provide you with the legal protection you require.

Early conciliation

In the event that your organisation appeals and grievance process has been exhausted, there are other legal services to consider. The Advisory, Conciliation and Arbitration Service (ACAS) prescribe that the next step to be taken, prior to any tribunal claim, is early conciliation. This is a dispute resolution process that ACAS offer if they accept the dispute is one which they are able to manage for you. Watch ACAS conciliator Andrew Cowler talk about early conciliation here.

It is important to remember, however, that there are time limits which apply to Tribunal Claims. Although, during early conciliation, time in terms of this limit, is frozen so no party is prejudiced or feel under pressure to compromise.

Most people want to take part in early conciliation to settle their workplace dispute without going to court. Reaching a settlement through conciliation is quicker, cheaper and less stressful for all concerned than a tribunal hearing. There is no requirement to obtain legal representation to guide you through the early conciliation process. Though due to the complex nature of this, it is highly recommended.

If you appoint a representative to act for you, conciliation occurs through them. Due to the complicated legal rules surrounding ACAS early conciliation, you may decide that you require the expertise of a solicitor to assist you. In this difficult process, they can protect your position and advise you on the merits of your claim as well as your settlement options. Your representative has the power to agree on a settlement on your behalf. As settlements are legally binding, it is important to ensure that your representative fully understands your requirements and has your full authority to enter into an agreement on your behalf.

Employment tribunal

If parties cannot reach an agreement through Acas early conciliation, the claimant may choose to proceed to a tribunal a type of court set up to provide a fast, informal and inexpensive way to solve employment disputes in a way deemed equally accessible to employees and employers alike. The most common disputes heard at an employment tribunal are relating to:

Unfair dismissal

Redundancy payments and discrimination

Unpaid wages

Tribunal claims have to be presented within a certain amount of time, known as limitation periods, usually three or six months depending on the type of claim. For example, after being dismissed a person has three months from the date the employment ended in which to make a claim of unfair dismissal. If you submit your application out of time your claim can simply be struck out. A legal representative can manage this process for you and ensure time limits are not overlooked.

A three-stage process

An employment judge will carry out the first step (sifting process). This will strike out cases or parts that have ‘no reasonable prospect of success’. The second stage is a preliminary hearing, which is a combination of case management discussions and pre-hearing review.
The preliminary hearing is usually conducted by an employment judge alone, often by telephone. This generally considers technical issues such as jurisdiction and amendment of claim arguments. It is also likely to consider alternative methods for settling the dispute, as well as the time and length of the final hearing.

The final hearing is usually held in public (although some evidence may be heard in private). Depending on the subject matter, it is heard by a chairman sitting alone or before a full panel. Full evidence can be given by all parties to include cross-examination after which a final order/judgement will be made. This can include an order for one party to pay the other party’s costs. How you have managed this dispute throughout can impact upon such an order being made. Even if you have “won” the case it doesn’t necessarily mean costs will follow if the tribunal feels your conduct in managing the dispute had been unreasonable i.e. refusing without good cause to engage in mediation.

Essentially, the objective of managing conflict in the workplace is to keep all disputes away from legal services. However, this may be inevitable. If so, don’t let your best efforts be set aside simply through failure to comply with legal procedures or laws. Invest in some legal advice and ensure you get it right!